If the Supreme Court upholds the individual mandate, Republicans will say: Now it's crucial to win the presidency and strong majorities in both houses of Congress so we can repeal this thing. If the individual mandate is unconstitutional, is there nothing Democrats can do? Well, the existing form of legislation is out, but there are other ways to extend health care that would not meet the same constitutional problem. But would Democrats want to argue that they need to win the presidency and strong majorities in both houses of Congress so they can push through some new health care reform? I doubt it. What a nightmare it was the first time, devastating the path of the Obama presidency and giving rise to the Tea Party!

From the first link, which is to Adam Liptak in the NYT:

The Supreme Court agreed to hear appeals from just one decision, from the United States Court of Appeals for the 11th Circuit, in Atlanta, the only one so far striking down the mandate. The decision, from a divided three-judge panel, said the mandate overstepped Congressional authority and could not be justified by the constitutional power “to regulate commerce” or “to lay and collect taxes.”

The appeals court went no further, though, severing the mandate from the rest of the law.

On Monday, the justices agreed to decide not only whether the mandate is constitutional but also, if it is not, how much of the balance of the law, the Patient Protection and Affordable Care Act, must fall along with it.

If the Court takes down the entire Act, it would do Obama a great favor, which is why I'm predicting the Court will do just that. That was my prediction a few weeks ago, reading, not the the existing doctrine, but "the political forces at play and assessing the Court's vulnerability to those forces."

Ann what if the court tosses the mandate and leaves the rest intact? What a mess that will be. Taxes will be collected but without a specific spending program those funds were supposed to be tasked for. And the states will still have the onerous Medicaid provisions.

If the thing is upheld then what is the limit to government power since virtually anything can be reduced to an economic transaction? And will the states rebel and opt out of Medicaid?

I will be stunned if the court if the court overturns "free" healthcare. All of the planets are in alignment to do just that, but they won't. Same as Kelo, same as campaign finance reform. The expectations are there, but won't happen.

The US will continue on it's accelerating rate to Greecedom. When we arrive at that destination, the citizens will look around, scratch their heads and wonder what happened.

what does it say when conservatives prefer state autonomy while libs prefer central control

On a plane of government authority, with moderates dead center, the further right you go, the smaller the heavy hand gets until you get to anarchy. The further left you go, the bigger that hand gets until you have absolute tyranny.

Didn't the 11th CC decision say since there was severability mention, it invalidated the whole thing? So many CC decision, so little time...

Whether the SCOTUS punts the decision until 2012 or they come down with a decision before the election, it's bad for the President. The whole sordid affair leading up to the passing of Obamacare was SO bad that any replaying of it's high points will simply drive up the fervor on the right.

Quite a pivotal case- do the states keep their current, significant autonomy or does the fed govt take over anything it wants?

Aside from whether is is Constitutional to mandate that 'we the people' have to purchase a product, the State's Rights autonomy issue is HUGE.

Do the individual States have the right to manage things within their own jurisdiction to accommodate their individual and unique populations needs. Education, health care, welfare systems? Local environmental concerns and water rights?

This last one is also HUGE in our particular area and there is probably going to be a big showdown between the people who reside in the States that are affected (State of Jefferson btw) and Federal mandates made from a central location on the other side of the Continent.

Scott M said...Ann what if the court tosses the mandate and leaves the rest intact?

Didn't the 11th CC decision say since there was severability mention, it invalidated the whole thing? So many CC decision, so little time...

Whether the SCOTUS punts the decision until 2012 or they come down with a decision before the election, it's bad for the President. The whole sordid affair leading up to the passing of Obamacare was SO bad that any replaying of it's high points will simply drive up the fervor on the right.

11/14/11 11:45 AM

The district court ruled there was a severability issue, the circuit court (the 11th) the circuit court ruled there was not a severability issue. The circuit inly ruled the mandate was unconstitutional but left the rest intact.

The politics of this are so intricate I confuse myself just thinking about them.

I can see how a 5-4, partisan overturn would give Obama a much-needed issue to energize his base. OTOH, in 2008 he didn't seem to think that what became Obamacare was a winning position on HCR. And it seems like running on it now would also energize the Republicans who might otherwise stay home out of disappointment with Romney. OTOOH, it does seem like the Dems are going to be more dispirited than the Reps next fall.

So I can see it cutting either way. But my gut tells me, an opponent of Ocare, that I'd rather see the SC overturn it and take my chances in the next election. A bird in the hand, and all that.

I think Obamacare being in the news cycle at all, regardless of the Supreme Court's decision, hurts the Obama campaign. The ACA remains devastatingly unpopular (2 years later, "Obamacare" is still pejorative), and with no tangible benefits yet materializing, its proponents have a far harder sell than its opponents. "Sure your premiums have skyrocketed since the ACA passed but we promise: just give us until 2014 and it'll be raining gold and gumdrops."

I understand the ridiculous theory that Obamacare being declared unconstitutional will help Obama, but I just don't see it. Has any legislative failure ever helped the president who proposed it? Bush's decline started after the spectacular failures of immigration reform and "privatizing" social security. They were unpopular pieces of legislation, but Bush didn't get credit when they went down in flames!

If the Court takes down the entire Act, it would do Obama a great favor, which is why I'm predicting the Court will do just that. That was my prediction a few weeks ago, reading, not the the existing doctrine, but "the political forces at play and assessing the Court's vulnerability to those forces."

I honestly don’t see how this doesn’t hurt Obama no matter what. If it’s unconstitutional, then he and the dems pushed this unconstitutional thing down our throats, and have no respect for our constitutionally protected rights. If it is constitutional, everyone’s mad about it again and the Tea Party base gets excited all over again. If it’s severable, there’s the whole mess of how to apply it and why they screwed it up so badly. Either way, we’re talking about it again, and, as we well recall, the more we talk about it, the less we like it.

Even if SCOTUS punts on standing or something similar, I’m not seeing how re-opening that wound helps Obama more than it hurts him.

I am sure the decision is going to be based on nothing but political considerations. Just like Gore V Bush. I do not think the individual mandate is as unpopular as the anti-O folks would like to think. There is a mandate for SS and Medicare, big deal. And auto insurance in most places. If you want health care you need to pay for it. I think the idea of another large public spending project is more problematical. The people I know who are against the new health care law are more concerned with how we are going to pay for it. Not that we will be required to have insurance.

That's almost like saying renting a movie video is just like a constitutionally protected right to vote!!

You lost me here.

ScottM is undoubtedly referring to the fact that auto-insurance mandates are imposed by the states, not the federal government. You know, the level of government that's putatively restrained by the interstate commerce clause?

Nobody on the right has argued that Romneycare is unconstitutional. A bad idea, perhaps, but not unconstitutional.

No, GM. Auto insurance depends entirely on whether on not someone owns and uses a car. You can own a car, but not drive it, ever. You can likewise NOT own a car and use other means of transportation. Neither of those situations require the purchase of auto insurance.

"If the Court takes down the entire Act, it would do Obama a great favor, which is why I'm predicting the Court will do just that."

Uh, respectfully, no.

Stupid people need no more or less reason to vote for Obama - they did so before, they'll do so again. Having divested themselves of reason and experience before, most all of them will have no reason to cite reason or experience to inform their votes this time around.

Now, if Romney, improbably, plays a better tune than does Obama to attract the idiot vote, he might very well win. But as the idiots involved in Act Out on Wall Street, as well as in Greece conclusively prove (as if it hadn't been proved beyond a reasonable doubt long before now), the dulcet promises of Socialism, or just plain living at someone else's expense, are just too attractive to pass up. That it cannibalizes our future is of no concern to them - they think, despite all evidence to the contrary - rich people will always be here to make the shit we need, and have the cash to leach to buy us stuff we didn't, wouldn't, or couldn't earn on our own.

Ann "Alex Jones" Althouse. Are you suggesting a 7-2 decision with Kennedy and Scalia voting to uphold? Please. It will be 5-4 and all the libs will vote to uphold the law. Thomas will vote to kill it. The rest probably vote to kill as well in increasing likelihood from Kennedy, Scalia, Roberts to Alito.

This will be on fascinating legal/political case before the supreme court. Upholding it definitely hurts Obama 2012 because it energizes opponents. Overturning it is harder to assess. Many conservatives say overturning will also help republicans, but I think Obama could turn that issue in his favor by arguing the conservative court took health care away from 40 million people, without worrying about the details of the law. It releases him from the burdens of the law.

PREDICTION: Robers will lead a very narrow majority opinion upholding the law in a manner that seeks to avoid application of the ruling to any other issue. It will increase his stature, increase the likelihood of Obama being defeated, and increase the likelihood that the law is legislatively overturned. Brilliant quasi political move by an experienced player in Roberts. He also may genuinely believe it is a political question that the court should stay away from.

I don't see where Ann demonstrates how popular opinion will influence the court.

Chip S says: "Nobody on the right has argued that Romneycare is unconstitutional. A bad idea, perhaps, but not unconstitutional."

As far as I know, you are right, but interestingly, under a theory such as that in Lochner v. N.Y., Romneycare might well be found unconstitutional. I recommend David Bernstein's Rebabilitating Lochner.

Leviathan is too danged big. Anything that cripples the beast and keeps it where it belongs (with its foot off our collective neck) is a good thing.

We've gotten to the point where there's nothing but parasitic pustulent pusillanimous "punters" (and I don't mean gamblers) on the Potomac. Other than that, there's not a thing wrong with our Federal government.

Don't worry "law prof" those that are awake will keep Obama off the General election ballot because he is not a natural born Citizen, i.e born in the US of US Citizen parents. Obama's birth as a British subject, to a British subject father, voids his eligibility. So you won't have a chance to vote for an ineligible candidate again. Obama has proved correct the founders' fear of foreign influence into the Oval Office, by allowing one who is not a creature of our own to ascend to the Presidency, and you helped. You should be ashamed.

I wonder if fellow Marxist Kagan will recuse herself, since she was involved in WH discussions about Obamacare's Constitutionality as Solicitor General. Probably not since Obama and his band of criminal Marxists care little for the rule of law.

"I will be stunned if the court if the court overturns 'free' healthcare."

I will too, given that Obamneycare is no such thing...it is still healthcare provided by private doctors and paid for through private health insurers, the premiums paid by private citizens using their own money.

"If the SCOTUS decision punts, as it will in a Presidential campaign year, then the best chance to cut out the Socialized Medicine Cancer will have been lost."

No, no...this is a decision to be rendered about Obamneycare, not Medicare!

SCOTUS has traditionally stayed away from political questions. This is more difficult to do that since it is so clearly a constitutional question than the typical political question case. But as Roger said, there is a good argument that health care should be fought in the political arena, rather than a closely voted SCOTUS opinion.

There is not question in my mind that Roberts is plenty smart enough to guide the court to a narrow decision upholding the constitutionality of the law and essentially throwing the issue back to the legislature. Still my prediction.

Maybe liberals will tell me I'm wrong, but I can't believe that losing the ACA wouldn't be a crippling and overwhelming blow to them. What do they have to show for their tremendous victory in 2008? Wall Street bailout and regulation? Kash for Klunkers? GM bailout? Stimulus bill? Guantanimo? Afghanistan? Cap and Trade? Immigration?

What do they look upon with some satisfaction? Health care. Is there anything else?

They went all in with everything they had to get health care reform, and believed it was worth it at the price. If that goes, I would have thought that many of them will quit in despair.

Pragmatist said... I am sure the decision is going to be based on nothing but political considerations. Just like Gore V Bush. I do not think the individual mandate is as unpopular as the anti-O folks would like to think. There is a mandate for SS and Medicare, big deal. And auto insurance in most places. If you want health care you need to pay for it. I think the idea of another large public spending project is more problematical. The people I know who are against the new health care law are more concerned with how we are going to pay for it. Not that we will be required to have insurance.

11/14/11 12:34 PM

Get your facts stright. Medicare and Social Security are taxes, not mandates and they were specifically defined by taxes in their enabling legislation. Obamacare doesn't make the mandate an apportioned tax, a huge screw up by the democrats. That is why there is no comparision to Obamacare and Medicare and Social Security, both of those programs are tax and welfare schemes, not mandates.

As for your comment about auto insurance, it is a silly argument. You don't need auto insurance to own a car or drive a car only to drive it on a publicly owned roadway. The proper comparison to Obamacare is having someone who neither owns a car or has a driver's license be compelled to buy auto insurance just to lower the overall auto insurance rates.In other words, as a condition of living.

"Maybe liberals will tell me I'm wrong, but I can't believe that losing the ACA wouldn't be a crippling and overwhelming blow to them...They went all in with everything they had to get health care reform...."

I think this sentiment may be Obama's biggest problem. There was so much effort and energy poured into the legislation, 18 months of sharp focus, backroom deals, nail-bitingly close votes, false starts and ends with Specter changing parties and Brown being elected, etc. etc., but in the end the ACA is a trillion dollar bill that doesn't do much. There is, as they say, an enthusiasm gap between its proponents and opponents.

I will too, given that Obamneycare is no such thing...it is still healthcare provided by private doctors and paid for through private health insurers, the premiums paid by private citizens using their own money.

I will too, given that Obamacare is no such thing...it is still healthcare provided by private doctors and paid for through private health insurers, the premiums paid by private citizens using their own money.

Well, not entirely. Friend got dumped from her health care insurance at her birthday this year in preparation for full implementation of ObamaCare, and the alternative appears to be a new federal program for the uninsurable.

The other thing to keep in mind is that the apparent intent here is to move to a government system when the government mandates drive the private systems out of the market - at least for those not working for large companies, unions, or law firms. The problem though is that as long as the Republicans control the House, that isn't going to happen.

p.s. while the left gets great amusement out of "Obamneycare", the litigation will only affect "ObamaCare", and most likely have no effect on what was passed into law in MA (by the Dems, but with Romney's signature). The major challenge to ObamaCare is to the Individual Mandate in relation to its Commerce Clause justification. A state would not depend on federal Commerce Clause to justify such a mandate.

You don't need auto insurance to own a car or drive a car only to drive it on a publicly owned roadway. The proper comparison to Obamacare is having someone who neither owns a car or has a driver's license be compelled to buy auto insurance just to lower the overall auto insurance rates.In other words, as a condition of living.

The supporters of the law seem to argue that everyone will, at some point in their lives, have to use our formal healthcare system. That is, of course, false. Most, maybe, but not all. There are plenty of people who consciously avoid such, whether from religious, or other, reasons.

But, possibly even more important here, there is a critical difference here between using the health care system, and using health care insurance to pay for it. There are a lot of people who pay as they go. Yes, some abuse the system, taking advantage of the fact that ERs cannot refuse to treat them. But others do actually pay for their care.

And, part of the problem with mandating universal health care insurance is that what is covered is, by necessity, a political decision. We are seeing that already with abortion coverage, and likely will see it with much more - expect that males and women who have had hysterectomies will have to pay for uterine and ovarian cancer screenings. That sort of thing. And, maybe psychological and substance abuse coverage. Oh, and for a lot of the slacker generation on their parents' policies. All of which drive up costs, making the exit of private companies for anything except Cadillac coverage that much more likely..

There are aspects of it that are supposedly aimed at making health care delivery more efficient and economical. They are, however, badly designed, and the most likely result will be Sarah Palin's "Death Panels".

But, of course, they were badly designed - the legislation was cobbled together in the middle of the night in relative secrecy, mostly by those who don't work in the field (and, worse, were mostly attorneys), and its passage was deemed too important to wait to work out all the myriad details first.

There are a lot of people who pay as they go. Yes, some abuse the system, taking advantage of the fact that ERs cannot refuse to treat them. But others do actually pay for their care.

The HSA solution is the absolutely best, but policy-makers believe that there aren't enough mature adults in the country to handle it themselves. Thus, as a result, there aren't enough mature adults able to handle it. You get more of the behavior you reward, after all.

Another critical difference between the Individual Mandate and automobile insurance - automobile insurance is mandated by states, while the individual mandate is federal, Constitutionally justified through the Commerce Clause.

It is well accepted in our law that states and our federal government have very different powers. The federal government's powers are (supposedly) sharply delineated by our Constitution. States on the other hand have fairly extensive police powers, and don't need to justify laws through reference to power granting clauses in our Constitution. Thus, states can pass criminal laws against a lot of things that the feds cannot.

Which indirectly leads into another part of the Individual Mandate debate - whether it is a penalty or a tax. It is specifically called a "penalty" in the legislation, but many are arguing that it is essentially a tax, but the Dems couldn't have passed the legislation if it had been called a "tax" instead.

This means that the more coverage you have, and the lower the co-pays, the more health care people are going to consume. Which, the Dems apparently figure is a good way to get health care costs under control.

Let me add to my last (cynical) comment, that part of the basic problem with ObamaCare was that it ignored economic reality, in a number of ways. One of the most obvious is what I just talked about - that mandating coverages, deductibles, co-pays, etc. is guaranteed to drive costs up. Basic human nature. So, the solution on the left is a 2,000+ page bill and ultimately tens, if not hundreds, of thousands of pages of regulations.

We have already seen that this sort of approach cuts against a country of laws - for example, why did Pelosi's district receive so many health care waivers? So many big unions?

It, again, is pointing out the problems with central planning - one of the biggest of which is that people in the aggregate are far smarter than the bureaucrats ever can be or will be. So, for every plug for some evasion can be crafted by those bureaucrats, those regulated will find a dozen or more ways around such.

The basic idiotic premise behind ObamaCare is that the drafters and implementers were smart enough to plan 1/6 of our economy. They weren't, and will likely never be. And, hence, an epic fail.

The individual health care mandate originated with the conservative Heritage Foundation, then was adopted by Newt Gingrich, was part of the republican platform in 1996, then was implemented by Mitt Romney in Massachusetts, and then supported by Chuck Grassley during the debate over health care reform in 2010.

For what it's worth I seriously doubt the court acting on this helps Obama whatsoever no matter how they rule.

The simple fact of having it argued during the campaign will put it front and center. The candidates will have to address it, or in Obama's case likely dodge it repeatedly and attempt to vote present. The constitutional issues of limited government verse control by Washington elite will be aired in a way they haven't been since Reagan. What has been up to now a fairly limited debate will be held for a much broader audience.

Although the constitutional issue will be fairly narrow republicans will have a clear field and media attention to bring up every unpopular detail of the law.

Have the majority of voters faced the idea that the federal government is ordering them to buy a product from private for-profit (government approved no less, by partisan appointees) enterprises? I doubt that. My guess is outside the tiny minority of us that argue here and in places like this most people know little of the details.

Whether they uphold or overturn Obama will have to re-argue the thing all over again - or very publicly dodge it. And if they do strike it down then Obama and the Dems will be exposed as attempting to foist an unconctitutional grab of power of the most intrusive kind.

@machine: I don't care who's idea it was; the idea that the government can compel you to buy any product it finds convenient is a stake in the very heart of freedom. But, personally, I am more interested in repeal of the mandate as a tool to kill something even more offensive; health care rationing.

Mike said...Leviathan is too danged big. Anything that cripples the beast and keeps it where it belongs (with its foot off our collective neck) is a good thing.=================Which is why Norquistians are fine crippling the military beast rather than let the temporary tax cuts on the rich expire, in any compromise the the Leviathan.

BarryD - "Take both Obamacare and Romneycare out of the equation, and Romney's campaign can be all-economy, all-the-time, and this is very likely to be a winning strategy.

Right now, Romney has no such luxury."

===============The problem far right conservatives have is that there are states full of people that are not true believers like them, that don't think right, and want things like Romneycare 3-1. Their hatred of Romney has nothing to do with Romneycare being imposed in Arkansas, because it won't be....it is that he worked with constituents in a pinko commie liberal Democrat state. Where water is flouridated and taxes are high. Making anyone North of the Mason Dixon Line or not hailing from rural Western enclaves a RINO!! - or far worse.

Quite similar to how the liberals and progressive jewish media of Manhattan and other enlightened enclaves like Austin and San Fran wish to shove their values on Flyover Country and spent a lot of time complaining that Bill Clinton was a DINO. From the "wrong place" serving a wrong-thinking constituency.

Mike, the government cannot compel you buy just any product...just the ones you use and expect other people to pay for thereby making it a commerce argument(and by law cannot be denied the use of); and health care rationing takes place every day and has been rationed for years...